Com. v. Bidwell, J.

J-A25042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES BIDWELL

Appellant No. 50 EDA 2014

Appeal from the Judgment of Sentence of August 22, 2013

In the Court of Common Pleas of Monroe County

Criminal Division at No.: CP-45-CR-0002816-2011

BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.: FILED MARCH 06, 2015

James Bidwell (“Bidwell”) appeals the August 22, 2013 judgment of

sentence. For the reasons set forth herein, we conclude that the trial court

abused its discretion in allowing the Commonwealth to introduce evidence of

Bidwell’s prior bad acts pursuant to Rule 404(b) of the Pennsylvania Rules of

Evidence. Accordingly, we vacate Bidwell’s judgment of sentence, and we

remand for additional proceedings consistent with this memorandum.

The trial court set forth the pertinent factual and procedural history of

this case as follows:

On November 18, 2010, Corporal Lucas Bray of the Pocono

Mountain Regional Police Department (“PMRPD”) received

information from a confidential informant that [Bidwell] and

another individual by the name of Chase Argot (“Argot”) would

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*

Retired Senior Judge assigned to the Superior Court.

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be traveling in a red [tractor-trailer] towing another truck.[1]

The informant stated that the two had travelled to Philadelphia in

order to pick up quantities of [m]ethamphetamine[,] and that

they were now on their way back to the area. Corporal Bray

informed Corporal Matt Nero, also of [the] PMRPD, of the

information provided by the informant. At the time, Corporal

Nero was on patrol in an unmarked, black Dodge Charger,

working the 3 p.m. to 11 p.m. shift. While parked on Route 115

near Interstate 80 in Blakeslee, [Pennsylvania,] Corporal Nero

observed a vehicle that matched the description provided by

Corporal Bray. Corporal Nero spotted a red [tractor-trailer]

exiting from Interstate 80 onto Route 115 [northbound] . . . .

Corporal Nero saw that the truck had run the stop sign at the

end of the exit ramp. In addition to the stop sign violation,

Corporal Nero noticed that the tag on the trailer was obstructed;

a metal object appeared to be blocking the truck’s tag.

Corporal Nero activated his vehicle’s siren and lights[,] and

initiated a traffic stop on Route 115 near the Best Western Hotel.

Corporal Nero approached the vehicle from the passenger side;

Argot was driving the vehicle and [Bidwell] was sitting in the

passenger seat drinking water and using his [iPad.] Corporal

Nero asked Argot and [Bidwell] for identification, insurance, and

registration. When Corporal Nero returned to his patrol vehicle,

he ran a criminal history check on Argot and [Bidwell, which

indicated] that Argot and [Bidwell] each had a criminal history.

Specifically, [Bidwell’s] criminal background check revealed prior

drug charges.

Corporal Nero next asked Argot to step out of the vehicle. Argot

stated that there were no illegal substances on his person, nor

were there any illegal substances located in the truck. Argot

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1

Corporal Bray’s confidential informant “ha[d] been deemed credible

and reliable in the past through information provided[,] which lead [sic] to

several arrests, the issuance of warrants[,] and the seizure of . . . controlled

substances.” Affidavit of Probable Cause, 11/19/2010, at 4. In addition to

the confidential informant, police also received information from three

additional sources, each of whom stated that Bidwell and Argot were

involved in the illegal distribution of methamphetamine. These individuals

are referred to in the affidavit of probable cause as “concerned citizen,”

“concerned resident,” and “confidential source,” respectively. Id. at 3-4.

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consented to a personal search, as well as a search of the truck.

[Bidwell then informed Corporal Nero that the truck belonged to

him, and refused to consent to any searches.] After [Bidwell]

denied Corporal Nero’s request to search the truck, [Corporal

Nero] deployed [his canine,] Niko[,] to perform a search of the

vehicle’s perimeter based on his suspicion that illegal narcotics

were present [in the truck.]

Niko . . . alert[ed] to the presence of a controlled substance.

Upon Niko’s alert, a decision was made to have the vehicle

impounded[,] and the truck was towed to the police

headquarters approximately twelve miles away. While located at

police headquarters, the truck was under constant visual

inspection. On November 19, 2010, at 8:45 a.m., Magisterial

District Judge Anthony Fluegel signed a warrant authorizing a

search of [Bidwell’s] truck.

Trial Court Opinion (“T.C.O.”), 6/1/2012, at 1-3 (unnumbered).

Upon searching Bidwell’s tractor-trailer, police discovered a small

amount of methamphetamine (approximately .11 grams) inside of a

briefcase that belonged to Argot. They also found 3.3 grams of

methamphetamine (commonly referred to as an “eight ball”) underneath a

mattress, which was directly behind the area where Bidwell was sitting at

the time of the traffic stop.

On June 9, 2011, Corporal Bray filed a criminal complaint charging

Bidwell with possession of a controlled substance, possession of a controlled

substance with intent to deliver (“PWID”), possession of drug paraphernalia,

and conspiracy to commit PWID.2 On February 29, 2012, Bidwell filed an

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2

35 P.S. §§ 780-113(a)(16), 780-113(a)(30), and 780-113(a)(32); and

18 Pa.C.S. § 903 (35 P.S. § 780-113(a)(30)), respectively.

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omnibus pretrial motion to suppress the physical evidence obtained from the

search of his truck. Therein, Bidwell argued that: (1) the stop, detention,

and seizure of Bidwell’s tractor-trailer were unconstitutional; (2) Corporal

Nero conducted a canine search of the exterior of Bidwell’s tractor-trailer

without the requisite reasonable suspicion that the vehicle was carrying

controlled substances; and (3) the November 19, 2010 search warrant was

not supported by adequate probable cause. Bidwell’s Omnibus Pretrial

Motion, 2/29/2012, at 2-6. In his motion, Bidwell also sought disclosure of

the identity of the Commonwealth’s confidential informant. On June 1,

2012, the trial court denied Bidwell’s motion by opinion and order following a

hearing.

On December 20, 2012, Bidwell filed a motion in limine seeking to

preclude Corporal Nero from testifying that Bidwell refused to consent to a

search of his tractor-trailer. On January 28, 2013, the Commonwealth filed

written notice of its intent to introduce at trial evidence of prior bad acts

pursuant to Pa.R.E. 404(b).3 Specifically, the Commonwealth intended “to

call multiple witnesses to establish that [Bidwell] regularly delivered

methamphetamine to others.” Commonwealth’s Notice Pursuant to Pa.R.E.

404(b)(4), 1/28/2013, at 1 (unnumbered). According to the

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3

See Pa.R.E. 404(b)(3) (“In a criminal case the prosecutor must

provide reasonable notice in advance of trial . . . of the general nature of

any [Rule 404(b)] evidence the prosecutor intends to introduce at trial.”)

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Commonwealth, the evidence of Bidwell’s prior drug deliveries would

“establish [Bidwell’s] intent in the present case.” Id. In response, Bidwell

filed a second motion in limine arguing that the Commonwealth should be

precluded from introducing the proffered Rule 404(b) evidence.

On March 4, 2013, the Commonwealth filed an amended notice of its

intent to introduce evidence of Bidwell’s prior bad acts. In the amended

notice, the Commonwealth specifically named Chase Argot, Clark Kitchell,

and Andrew Dehaan as the witnesses who would testify that Bidwell

previously had distributed methamphetamine to his friends and to his

employees.4 Commonwealth’s Amended Notice Pursuant to Pa.R.E.

404(b)(4), 3/4/2013, at 1 (unnumbered). According to the Commonwealth,

this testimony would establish Bidwell’s “intent, modus operandi, common

scheme, guilty knowledge, and the res gestae of the case as a whole.” Id.

at 2.

On May 7, 2013, Bidwell proceeded to a jury trial. Immediately before

the trial commenced, the court granted Bidwell’s December 20, 2012 motion

in limine, thereby barring Corporal Nero from testifying that Bidwell had

refused to consent to a search of his tractor-trailer. The trial court denied

Bidwell’s January 28, 2013 motion in limine, thereby permitting the

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4

Bidwell is the owner of Christian Containers, a garbage hauling

company. Notes of Testimony (“N.T.”), 5/7/2013, at 28.

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Commonwealth to introduce evidence of Bidwell’s prior drug deliveries

pursuant to Pa.R.E. 404(b).

Despite the trial court’s evidentiary ruling, on the first day of Bidwell’s

trial, Corporal Nero testified that Bidwell “would not give [him] consent to

search the vehicle.”5 Notes of Testimony (“N.T.”), 5/7/2013, at 43-44.

Following Corporal Nero’s utterance, Bidwell immediately moved for a

mistrial, which the trial court denied. The trial court offered to give the jury

a cautionary instruction, but Bidwell declined the offer.

The Commonwealth then presented testimony from Kitchell, Dehaan,

and Argot, which demonstrated that, on prior occasions, Bidwell had shared

methamphetamine with his friends and his employees. Near the close of the

Commonwealth’s case, the trial court permitted Corporal Bray to testify over

Bidwell’s objection that, in his expert opinion, the methamphetamine found

in Bidwell’s vehicle was consistent with possession with intent to deliver.

On May 9, 2013, the jury found Bidwell guilty of all counts. On August

22, 2013, the trial court sentenced Bidwell to an aggregate term of twenty-

four to sixty months’ incarceration. Sentencing Order, 8/28/2013, at 1-3.

Bidwell then timely filed post-sentence motions, which the trial court denied

on December 17, 2013.

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5

Corporal Nero testified in response to a question posed by Bidwell’s

own counsel on cross-examination.

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On December 31, 2013, Bidwell timely filed a notice of appeal. On

January 8, 2014, the trial court directed Bidwell to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Bidwell

timely complied. On February 12, 2014, the trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

Bidwell presents five issues for our consideration:

1. Whether the trial court erred when it allowed the

Commonwealth to introduce [Bidwell’s] prior drug use and

deliveries as [Rule] 404(b) evidence during trial over defense

objections?

2. Whether the [trial] court erred when it denied [Bidwell’s

m]otion for [m]istrial after [Corporal] Nero testified

nonresponsively to a defense question stating [Bidwell]

refused consent to a search of the vehicle?

3. Whether the [trial] court erred when it refused to order the

disclosure of confidential informants and to suppress the

methamphetamine seized from the [tractor-trailer] by

warrant which relied upon an unlawful canine sniff and no

facts upon which the alleged informants could be found

reliable?

4. Whether the trial court erred when it refused to order

disclosure of the identity of the witness who alleged that

Argot was his drug dealer?

5. Whether the trial court erred in allowing [Corporal] Bray to

testify over objection that the eight ball of methamphetamine

found in the [tractor-trailer] was possessed with intent to

deliver?

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Brief for Bidwell at 6.6

In his first issue, Bidwell argues that the trial court erred in denying

his motion in limine “to preclude any evidence of prior drug deliveries.” Id.

at 12. Specifically, Bidwell sought to preclude the Commonwealth from

introducing evidence that he had, on prior occasions unrelated to his arrest

for the instant offenses, provided methamphetamine to his employees.

Because the certified record demonstrates that this testimony had no

relevance other than to demonstrate Bidwell’s propensity to distribute

methamphetamine, the trial court not only erred, but also abused its

discretion in denying Bidwell’s motion in limine.

“In evaluating the denial or grant of a motion in limine, our standard

of review is the same as that utilized to analyze an evidentiary challenge.”

Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014) (en banc).

The admission of evidence is committed to the sound discretion

of the trial court, and a trial court’s ruling regarding the

admission of evidence will not be disturbed on appeal unless that

ruling reflects manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support to be clearly

erroneous.

Id. (quoting Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super.

2010)).

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6

In his Rule 1925(b) statement, Bidwell also claimed that the jury’s

verdict was against the weight of the evidence. Bidwell has abandoned that

issue on appeal.

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In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), our

Supreme Court summarized Rule 404(b)7 of the Pennsylvania Rules of

Evidence as follows:

Generally, evidence of prior bad acts or unrelated criminal

activity is inadmissible to show that a defendant acted in

conformity with those past acts or to show criminal propensity.

Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be

admissible when offered to prove some other relevant fact, such

as motive, opportunity, intent, preparation, plan, knowledge,

identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).

In determining whether evidence of other prior bad acts is

admissible, the trial court is obliged to balance the probative

value of such evidence against its prejudicial impact.

Sherwood, 982 A.2d at 497.

Stated simply, Rule 404(b) operates to prevent the jury from drawing

an inference of a defendant’s guilt based upon his or her propensity to

commit criminal acts. In this regard, our Supreme Court has explained that:

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7

Pa.R.E. 404(b), entitled “Other crimes, wrongs, or acts,” provides in

relevant part as follows:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with

the character.

(2) Permitted Uses. This evidence may be admissible for

another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident. In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential

for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

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The purpose of [Rule 404(b)] is to prevent the conviction of an

accused for one crime by the use of evidence that he has

committed other unrelated crimes, and to preclude the inference

that because he has committed other crimes he was more likely

to commit that crime for which he is being tried. The presumed

effect of such evidence is to predispose the minds of the jurors

to believe the accused guilty, and thus effectually to strip him of

the presumption of innocence.

Commonwealth v. Spruill, 391 A.2d 1048, 1049-50 (Pa. 1978) (citations

omitted).

There are, of course, narrow exceptions to this rule, which may apply

when the prior criminal acts are so closely related to the crime charged that

they demonstrate a defendant’s motive, intent, malice, identity, or a

common scheme, plan or design. Commonwealth v. Stanley, 398 A.2d

631, 633-34 (Pa. 1979). These exceptions, however, “cannot be stretched

in ways that effectively eradicate the rule.” Commonwealth v. Ross, 57

A.3d 85, 104 (Pa. Super. 2012) (en banc).

As a starting point, we review the relevant testimony elicited at

Bidwell’s trial. First, Clark Kitchell, one of Bidwell’s employees, testified as

follows:

Q: Did [Bidwell] tell you anything else when he said to stick

around [at his shop on November 18, 2010]?

A: Yeah. I know they were going to Philadelphia to pick

something up, methamphetamines, at the time.

Q: He told you that?

A: Yes.

Q: He delivered it to you in the past?

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A: He gave it to me in the past. He didn’t deliver to me [in]

the past.

Q: Well, he handed it to you?

A: Yes.

Q: But he would not make you pay for it?

A: No. He never made me pay for it. Mostly it was he gave

all the workers mostly methamphetamine to keep them

working at the shop.

Q: And when he gave it to you how would it be packaged?

A: It would be packaged—he would pack it up in a little like

dime[-]sized bags. Like in the ziplocked, [sic] little bags.

N.T., 5/7/2013, at 64-65.

The Commonwealth also offered testimony from another one of

Bidwell’s employees, Andrew Dehaan.

Q: Okay. Now, before [November 19, 2010,] had you

received methamphetamine from [Bidwell]?

A: I received it how?

Q: Did he give it to you?

A: He let me do some. He didn’t just give it to me. There is

a difference.

Q: Tell us how that happened?

A: Just like anyone else I partied with. You know, I did drugs

with him. I cut out a couple of lines and we did some

drugs.

Q: So he would cut out a couple of lines or you would?

A: He would.

Q: He would cut out a couple of lines. And you would do a

line and he would do a line. Is that how it worked?

A: Yeah.

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Id. at 100-01.

Finally, Chase Argot testified as follows:

Q: How often would [Bidwell] give you methamphetamine?

A: I guess you can say regular [sic]. I don’t really know.

Q: Maybe a couple times a week or a couple times a month?

A: A couple times a week.

Q: Did you know where he was getting his methamphetamine

from?

A: I do not.

Id. at 139-40.

The trial court held that the above testimony was admissible to

demonstrate Bidwell’s motive, intent, common scheme or plan, and modus

operandi. T.C.O., 6/1/2012, at 14. We disagree.

In order for Rule 404(b) evidence to be admissible to demonstrate

motive or intent there must be a firm basis for concluding that the crime

currently on trial “grew out of or was in any way caused by the prior set of

facts and circumstances.” Commonwealth v. Camperson, 612 A.2d 482,

484 (Pa. Super. 1992) (quoting Commonwealth v. Brown, 421 A.2d 734,

736 (Pa. Super. 1980)). This analysis is guided by factors such as the

proximity in time between the incidents; the similarity in the circumstances

surrounding the incidents; and whether evidence of the prior crime is

necessary to rebut the accused’s evidence or contention of accident,

mistake, or lack of required intent. Commonwealth v. Sparks, 492 A.2d

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720, 722 (Pa. Super. 1985); Commonwealth v. Barba, 460 A.2d 1103,

1109 (Pa. Super. 1983).

It would be illogical to conclude that Bidwell’s possession of

methamphetamine grew out of or was caused by the fact that Bidwell had

previously given methamphetamine to the three witnesses. The two

occurrences do not share the close factual nexus that is required by Rule

404(b). Camperson, 612 A.2d at 484. For example, Bidwell’s possession

of methamphetamine logically could not have been caused by the fact that,

on some earlier occasion, Bidwell “cut out a couple of lines” of

methamphetamine, and shared them with Dehaan. N.T., 5/7/2013, at 100-

01. Nor did the facts surrounding the instant offense grow out of that

behavior.

The trial court also held that the Commonwealth’s Rule 404(b)

evidence was admissible to prove a common scheme or plan and Bidwell’s

modus operandi. T.C.O., 6/1/2012, at 14. Under Pennsylvania law,

evidence of prior bad acts is admissible to prove “a common scheme, plan or

design where the crimes are so related that proof of one tends to prove the

others.” Commonwealth v. Elliott, 700 A.2d 1243, 1249 (Pa. 1997),

abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d 385

(Pa. 2003). The existence of a common scheme is relevant to establish any

element of a crime, “so long as it does not merely indicate the defendant’s

propensity to commit similar crimes.” Commonwealth v. Bronshtein, 691

A.2d 907, 915-16 (Pa. 1997).

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In Elliott, for example, the appellant was accused of sexually

assaulting and then killing a young woman whom he approached outside of a

particular club at 4:30 a.m. Our Supreme Court affirmed the trial court’s

decision to permit three other young women to testify that the appellant had

similarly preyed upon each of them as they were leaving the exact same

club in the early morning hours, and that he had physically and sexually

assaulted them. Elliott, 700 A.2d at 1250-51. Our Supreme Court

reasoned that the testimony was admissible to establish a common scheme,

plan or design in light of the “close similarity between [the] assaults.” Id.

Relatedly, in order to establish a defendant’s modus operandi, the

Commonwealth must demonstrate that the crimes in question are “so nearly

identical in method as to earmark them as the handiwork of the accused.”

Commonwealth v. Rush, 646 A.2d 557, 561 (Pa. 1994) (quoting

McCormick on Evidence, § 190 (2d ed. 1972)). “More is demanded [than]

the mere repeated commission of crimes of the same class, such as

repeated burglaries or thefts. The device used must be so unusual or

distinctive as to be like a signature.” Commonwealth v. Blady, 444 A.2d

670, 671-72 (Pa. Super. 1982)

Here, any similarity between Bidwell’s prior methamphetamine

deliveries (as testified to by Kitchell, Dehaan, and Argot) and this case falls

short of proof of a common scheme, plan or design. The Commonwealth

presented evidence of similarity only at the most basic level—to wit, that

both incidents involved methamphetamine. Cf. Elliott, 700 A.2d at 1249

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(holding that evidence of prior bad acts is admissible to prove “a common

scheme, plan or design where the crimes are so related that proof of one

tends to prove the others.”). Bidwell’s drug deliveries did not share a

distinctive modus operandi. There was, for example, no testimony that the

methamphetamine seized (or its packaging) was uniquely consistent with

Bidwell’s prior deliveries. The prior bad acts testimony demonstrated merely

that Bidwell previously had shared methamphetamine with his friends and

employees; it did not illustrate “a unique ‘signature’ modus operandi.”

Ross, 57 A.3d at 104.

Of course, the Commonwealth did not argue that Bidwell’s prior drug

deliveries actually caused him to possess methamphetamine subsequently,

or that the instant offenses developed from Bidwell’s sharing of

methamphetamine with his employees. Instead, the Commonwealth relied

upon the exact reasoning that Rule 404(b) forbids—the inference that,

because Bidwell distributed methamphetamine on a prior occasion, he must

have intended to distribute this methamphetamine. Indeed, the assistant

district attorney candidly acknowledged this fact.

I want to be clear that the reason that we want to bring in this

[evidence] is because I can’t think of any other way to get the

testimony from the witnesses that they knew that they were

going to get methamphetamine from [Bidwell] other than based

upon their prior deliveries. . . . If the court limits that and cuts

that off, the evidence will make no sense to the jury. They will

have no reason to believe that these witnesses had any

knowledge of what [Bidwell] was going to do[,] and it all goes

down to [Bidwell’s] possession and his intent to deliver.

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N.T., 5/7/2013, at 11. The assistant district attorney plainly encouraged the

jury to draw this inference in his closing argument: “And the reason why we

know that [Bidwell] had it to deliver is because that was what he did with his

methamphetamine. He cut it up into lines, [and] shared [it] with his friends

or so-called friends.” Id. at 38. The purpose of Rule 404(b) is to prevent

the jury from drawing such a propensity inference.

This does not end our inquiry. Before we may grant Bidwell relief, we

must find that the trial court’s error was not harmless. It is well-settled that

the Commonwealth bears the burden of establishing that the error was

harmless beyond a reasonable doubt. Commonwealth v. Story, 383 A.2d

155, 162 n.11 (Pa. 1978).

Harmless error exists where (1) the error did not prejudice the

defendant or the prejudice was de minimis; (2) the erroneously

admitted evidence was merely cumulative of other untainted

evidence which was substantially similar to the erroneously

admitted evidence; or (3) the properly admitted and

uncontradicted evidence of guilt was so overwhelming and the

prejudicial effect of the error was so insignificant by comparison

that the error could not have contributed to the verdict.

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (quoting

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)).

Our Supreme Court has noted that “[e]vidence of prior criminal

activity . . . is probably only equaled by a confession in its prejudicial impact

upon a jury.” Spruill, 391 A.2d at 1050. “The presumed effect of such

evidence is to predispose the minds of the jurors to believe the accused

guilty, and thus effectually to strip him of the presumption of innocence.”

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Commonwealth v. Trowery, 235 A.2d 171, 172 (Pa. Super. 1967). For

this reason, Rule 404(b)(1) explicitly prohibits introduction of evidence of

prior bad acts for the purpose of showing that the defendant has a

generalized propensity to commit a particular crime—here, the proclivity to

distribute methamphetamine.

Instantly, the Commonwealth’s Rule 404(b) evidence was nothing

more than an invitation to the jury to infer that Bidwell intended to distribute

methamphetamine because he had done so in the past. The prospect that

the jury would draw such an inference was underscored by the assistant

district attorney’s closing argument, which unmistakably called upon the jury

to infer Bidwell’s guilt based upon his prior bad acts. See N.T., 5/9/2013, at

38 (“[T]he reason why we know that [Bidwell] had [methamphetamine] to

deliver is because that was what he did with his methamphetamine. He cut

it up into lines, [and] shared [it] with his friends.”). Moreover, the evidence

of Bidwell’s prior methamphetamine deliveries was not cumulative; it was

the cornerstone of the Commonwealth’s case against Bidwell. 8 The

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8

Although Corporal Bray, an expert in the field of drug trafficking,

testified that the facts surrounding Bidwell’s possession of

methamphetamine were consistent with possession with intent to deliver,

Corporal Bray also testified that he based his opinion, at least in part, upon

the Commonwealth’s Rule 404(b) evidence. N.T., 5/7/2013, at 165-67.

Therefore, the evidence of Bidwell’s prior bad acts tainted Corporal Bray’s

expert testimony. See Hutchinson, 811 A.2d at 561 (“Harmless error

exists where . . . the erroneously admitted evidence was merely cumulative

of other untainted evidence which was substantially similar to the

erroneously admitted evidence.” (emphasis added)).

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Commonwealth needed the jury to draw that connection in order to prove

that Bidwell intended to distribute the narcotics at issue. The assistant

district attorney plainly conceded this fact to the trial court. N.T., 5/7/2013,

at 11.

Based upon the particularly prejudicial nature of prior bad acts

testimony and the lack of any other compelling evidence of Bidwell’s intent

to deliver methamphetamine, the trial court’s admission of Rule 404(b)

evidence was not harmless beyond a reasonable doubt. Accordingly, the

trial court not only erred, but also abused its discretion by permitting such

evidence. Consequently, Bidwell is entitled to a new trial.

Having determined that Bidwell is entitled to a new trial, we now

address his remaining issues inasmuch as they may arise upon remand. In

his second issue, Bidwell contends that the trial court erred in denying his

motion for a mistrial. Brief for Bidwell at 27-29.

The trial court granted Bidwell’s motion in limine, which precluded at

trial any evidence regarding Bidwell’s refusal to consent to the search of his

truck. Nevertheless, during defense counsel’s cross-examination, Corporal

Nero testified that Bidwell “would not give [him] consent to search the

vehicle.” N.T., 5/7/2013, at 43-44. The remedy for such a violation would

be a new trial, the same remedy we granted to Bidwell on his first issue.

Our resolution of Bidwell’s first issue, therefore, has rendered this claim

moot. See In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“As a general

rule, an actual case or controversy must exist at all stages of the judicial

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process, or a case will be dismissed as moot.”). Nothing about our

resolution of this issue should be taken as an expansion or constriction of

the trial court’s evidentiary ruling, which remains viable and applies with

equal force upon remand. Accordingly, these unique circumstances are

unlikely to recur at Bidwell’s retrial.

In his third issue, Bidwell argues that the trial court erred in denying

his pretrial motion to suppress the physical evidence obtained from the

search of his truck. Specifically, Bidwell contends that: (1) because Corporal

Nero lacked reasonable suspicion that Bidwell and Argot were involved in

drug trafficking, the canine search of Bidwell’s truck violated Article I, § 8 of

the Pennsylvania Constitution; (2) the search warrant failed to articulate the

confidential informant’s reliability and basis of knowledge; and (3) the trial

court erred in failing to order disclosure of the identity of the

Commonwealth’s confidential informant. Brief for Bidwell at 15-22. We

disagree.

Our standard of review of a denial of suppression is whether the

record supports the trial court’s factual findings and whether the

legal conclusions drawn therefrom are free from error. Our

scope of review is limited; we may consider only the evidence of

the prosecution and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record

as a whole. Where the record supports the findings of the

suppression court, we are bound by those facts and may reverse

only if the court erred in reaching its legal conclusions based

upon the facts.

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)

(internal citations and quotation marks omitted).

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In Bidwell’s first sub-issue, he claims that there was “no reasonable

suspicion to use [the] drug dog.” Brief for Bidwell at 15. We disagree.

Pursuant to Article I, § 8 of the Pennsylvania Constitution, a canine

sniff constitutes a search.9 Commonwealth v. Johnston, 530 A.2d 74, 79

(Pa. 1987). However, this type of search “is inherently less intrusive upon

an individual’s privacy than other searches such as wiretapping or

rummaging through one's luggage.” Id. Because canine searches

“amount[] to a relatively minor intrusion upon privacy,” they need not be

supported by probable cause. Instead, the police must possess only

reasonable suspicion that narcotics will be found in the area subject to the

canine search. Id.

Reasonable suspicion is a less stringent standard than probable

cause necessary to effectuate a warrantless arrest, and depends

on the information possessed by police and its degree of

reliability in the totality of the circumstances. In order to justify

the seizure, a police officer must be able to point to “specific and

articulable facts” leading him to suspect criminal activity is afoot.

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citing Terry v.

Ohio, 392 U.S. 1, 88 (1968)).

____________________________________________

9

Cf. United States v. Place, 462 U.S. 696 (1983) (holding that a sniff

by a trained narcotics detection dog is not a search within the meaning of

the Fourth Amendment to the United States Constitution).

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Here, Bidwell does not dispute that Corporal Nero stopped Bidwell’s

tractor-trailer after observing two violations of the Motor Vehicle Code.10

Bidwell argues that, once Corporal Nero issued a warning to Argot for those

offenses, he no longer had reasonable suspicion that criminal activity was

afoot. Bidwell therefore concludes that the canine search (which Corporal

Nero conducted after the traffic stop had concluded) was unsupported by the

required reasonable suspicion.

Our review of the suppression record demonstrates that Corporal Bray

informed Corporal Nero that a known confidential informant had reported

that Bidwell and Argot would be returning from Philadelphia on the night in

question. N.T., 4/2/2012, at 13, exh. 1. The confidential informant further

stated that the pair would be transporting methamphetamine in a red

tractor-trailer. Id. The confidential informant had provided accurate and

reliable information in the past. Id. Moreover, the confidential informant’s

tip was buttressed by the uncorroborated reports from three anonymous

sources, which the police referred to as “concerned citizen,” “concerned

resident,” and “confidential source” in the affidavit of probable cause. Id.

Each of these sources identified Bidwell and Argot as methamphetamine

dealers, and at least one of the anonymous sources echoed the confidential

____________________________________________

10

See 75 Pa.C.S. § 3323(b) (duties at stop signs); 75 Pa.C.S. § 1332

(display of registration plate).

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informant’s prediction that Bidwell and Argot would be traveling to

Philadelphia to pick up bulk quantities of methamphetamine. Id.

Corporal Nero observed a tractor-trailer that matched the confidential

informant’s description. Corporal Nero then identified the two occupants as

Bidwell and Argot, and determined that Bidwell’s extensive criminal history

included violations relating to the illegal manufacture and distribution of

controlled substances. N.T., 4/2/2012, at 48. The trial court concluded that

these facts, combined with the tip provided by a known confidential

informant who had proven reliable in the past, were sufficient to give rise to

reasonable suspicion.

Our Supreme Court has held that an informant’s tip may produce

probable cause—a requirement more stringent than the reasonable suspicion

needed for a canine search—where police independently corroborate the tip,

or where the informant has previously provided accurate information of

criminal activity. Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999).

Here, the police possessed such a tip from a known informant who had

proved to be reliable in the past. That information was, to some degree,

corroborated by anonymous tips from various “concerned citizens.” Finally,

Corporal Nero observed Argot and Bidwell traveling in a vehicle consistent

with the informant’s tip, at the time and in the direction that the informant

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predicted. Accordingly, the trial court did not err in holding that Corporal

Nero reasonably suspected that narcotics would be found in Bidwell’s truck. 11

Next, Bidwell maintains that the affidavit in support of the search

warrant did not “articulate reasons supporting the reliability of the alleged

informants.”12 Brief for Bidwell at 20. This argument is without merit.

When reviewing whether a search warrant was sufficiently supported

by probable cause, we employ the “totality of the circumstances” analysis of

Illinois v. Gates, 462 U.S. 213 (1983). See Commonwealth v. Gray,

503 A.2d 921 (Pa. 1985) (adopting the “totality of circumstances” test in

Pennsylvania).

The task of the issuing magistrate is simply to make a practical,

common sense decision whether, given all the circumstances set

forth in the affidavit before him, including the “veracity” and

“basis of knowledge” of persons supplying hearsay information,

that there is a fair probability that contraband or evidence of a

____________________________________________

11

In its December 17, 2013 opinion, the trial court noted that Bidwell

appeared to be nervous throughout the traffic stop, and that Argot’s eyes

were bloodshot “as though he were intoxicated.” T.C.O., 12/17/2013, at 18

n.9. The Commonwealth did not present this evidence at Bidwell’s

suppression hearing. Therefore, we reject the trial court’s analysis insofar

as it relied upon these factors in concluding that the canine search was

supported by reasonable suspicion. See In re L.J., 79 A.3d 1073 (Pa.

2013) (holding that an appellate court’s scope of review in suppression

matters includes only the suppression hearing record, and excludes any

evidence elicited at trial).

12

Because we conclude that the canine sniff was supported by

reasonable suspicion, we need not address Bidwell’s contention that the

search warrant was “tainted by the unlawful sniff.” Brief for Bidwell at 20.

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crime will be found in a particular place. Gray, 503 A.2d at 925

(quoting Gates, 462 U.S. at 238-39).

Commonwealth v. Ceriani, 600 A.2d 1282, 1283-84 (Pa. Super. 1991).

In reviewing the validity of a search warrant, the “reviewing court is

limited to determining whether there is substantial evidence supporting the

issuing authority’s decision to approve the warrant.” Commonwealth v.

Cramutola, 676 A.2d 1214, 1216 (Pa. Super. 1996). “We must limit our

inquiry to the information within the four corners of the affidavit submitted

in support of probable cause when determining whether the warrant was

issued upon probable cause.” Commonwealth v. Rogers, 615 A.2d 55, 62

(Pa. Super. 1992).

Instantly, Bidwell takes issue with the three anonymous sources listed

in the affidavit of probable cause, whose reliability and basis of knowledge

were unknown to the police. Bidwell fails to overcome the fact that these

sources were provided in addition to a known confidential informant who

“ha[d] been deemed credible and reliable in the past through information

provided.” Affidavit of Probable Cause, 11/19/2010, at 4.

We have held that “[p]robable cause to support issuance of a search

warrant is present where facts and circumstances within the affiant’s

knowledge, of which he has reasonable trustworthy information, are

sufficient in themselves to warrant a man of reasonable caution in belief that

a search should be conducted.” Commonwealth v. Bruner, 564 A.2d

1277, 1282 (Pa. Super. 1989); see also Commonwealth v. Sudler, 436

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A.2d 1376 (Pa. 1981) (“[I]dentified citizens who report their observations of

criminal activity to police are assumed to be trustworthy, in the absence of

special circumstances.”). Therefore, Bidwell’s assertion that probable cause

is lacking because the officers failed to corroborate the anonymous

allegations in the warrant application is misplaced.13

In his next sub-issue, Bidwell argues that the trial court erred in

refusing to order the Commonwealth to disclose the identity of its

confidential informant.14 We disagree.

“Our standard of review of claims that a trial court erred in its

disposition of a request for disclosure of an informant’s identity is confined to

abuse of discretion.” Commonwealth v. Washington, 63 A.3d 797, 801

____________________________________________

13

We also reject Bidwell’s contention that probable cause is lacking

because the affidavit “fail[ed] to state that the canine was certified or

otherwise reliable in the detection of controlled substances.” Brief for

Bidwell at 26. It is well-established that an affidavit of probable cause “must

be viewed in a common sense, nontechnical, ungrudging and positive

manner.” Commonwealth v. Baker, 615 A.2d 23, 25 (Pa. 1992). Here,

the affidavit of probable cause stated that Corporal Nero “deployed K9 Niko

to conduct a narcotics sweep of the perimeter of vehicle. K9 Niko made a

positive alert to the presence of a controlled substance about the vehicle.”

Affidavit of Probable Cause, 11/19/2010, at 4. A common sense reading of

the affidavit of probable cause belies Bidwell’s argument that the magistrate

lacked information “that the canine was more than just an ordinary police

dog.” Brief for Bidwell at 27.

14

The confidential informant initially reported that Bidwell and Argot

would be returning from Philadelphia in a red tractor-trailer containing

methamphetamine for distribution. Affidavit of Probable Cause, 11/19/2010,

at 5.

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(Pa. Super. 2013). The Commonwealth enjoys a qualified privilege to

withhold the identity of a confidential source. Commonwealth v. Bing,

713 A.2d 56 (Pa. 1998); Commonwealth v. Roebuck, 681 A.2d 1279,

1283 n.6 (Pa. 1996). In order to overcome this qualified privilege and

obtain disclosure of a confidential informant’s identity, a defendant first must

establish that the information sought is material to the preparation of the

defense, and that the request is reasonable. Roebuck, 681 A.2d at 1283.

Only after a defendant makes such a showing is the trial court required to

determine whether the information should be revealed by balancing “the

public interest in protecting the flow of information against the individual’s

right to prepare his defense.” Commonwealth v. Marsh, 997 A.2d 318,

321-22 (Pa. 2010); Bing, 713 A.2d at 58. Other relevant factors include the

particular crime(s) charged, any possible defenses, and the potential

significance of the informer’s testimony. Marsh, 997 A.2d at 322.

Instantly, Bidwell has failed to make a showing sufficient to overcome

the Commonwealth’s qualified privilege to withhold the identity of its

confidential informant. Before the trial court, Bidwell asserted that the

confidential informant was fictitious, but failed to offer any support for his

claim.15 Moreover, even if Bidwell had made a compelling showing of

____________________________________________

15

Bidwell’s argument is weakened by the fact that the Commonwealth

disclosed the identity of one of the confidential sources used in the

preparation of the search warrant application. Because Kristen Wagner died

prior to Bidwell’s trial, and her safety was therefore no longer in danger, the

(Footnote Continued Next Page)

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materiality, his claim would still fail because “the disclosure of the identity of

an informant is not required when the safety of the informant would be

jeopardized.” Bing, 551 713 A.2d at 60. Here, the Commonwealth

presented evidence that the confidential sources used in the preparation of

the search warrant would be in danger of death or serious injury if their

identities were revealed. Indeed, the confidential sources explicitly stated

that they feared that Bidwell would physically harm or kill them if he learned

of their identities. N.T., 4/2/2012, at 16. The trial court also considered

Bidwell’s violent criminal history, and the fact that the instant charges

carried with them the possibility of a substantial period of incarceration.

Based upon this evidence, the trial court concluded that disclosing the

identity of the confidential sources would jeopardize their safety, and denied

Bidwell’s motion. We discern no abuse of discretion in that ruling.

In Bidwell’s fourth issue, he argues that the Commonwealth’s failure to

disclose the identity of the confidential source who told police that Argot

regularly sold him methamphetamine16 constituted a violation of Brady v.

_______________________

(Footnote Continued)

Commonwealth disclosed her identity. N.T., 4/2/2012, at 17. The

Commonwealth also supplied the defense with a recording of Wagner’s

statement to the police. Id. Despite this disclosure, Bidwell still maintains

that the Commonwealth has fabricated the confidential informant. See e.g.,

Brief for Bidwell at 22 (“If ordered to disclose the existence of the

informants, the Commonwealth could not have complied since they did not

exist.”).

16

This source was described in the affidavit of probable cause as follows:

“On 9/21/2010 after an individual was arrested for the possession of a

(Footnote Continued Next Page)

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Maryland, 373 U.S. 83 (1963). Bidwell’s argument on this point consists of

a single sentence summarizing the essential holding in Brady, followed by

an assertion that the Commonwealth violated Brady in failing to provide the

defense with the source’s identity. Bidwell provides no support for his claim

that the identity of the source was material to his defense, nor does he

explain how the trial court abused its discretion in denying his motion to

disclose the source’s identity. Accordingly, Bidwell has waived this issue due

to his failure to develop the argument in a manner sufficient to warrant our

review. See Pa.R.A.P. 2119(b); Commonwealth v. Johnson, 985 A.2d

915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.”).

In his final issue, Bidwell maintains that the trial court erred in

“allowing [Corporal] Bray to testify that an eight ball [of methamphetamine]

was consistent with an intent to deliver.” Brief for Bidwell at 30. Bidwell

argues that “[Corporal] Bray had no support for his opinion other than the

testimony [of] Argot, Dehaan[,] and Kitchell . . . that Bidwell had shared

methamphetamine [with them] on prior occasions and [Corporal] Bray was

_______________________

(Footnote Continued)

controlled substance, the individual provided information about the person

who sells him narcotics. The individual identified Chase Argot as his drug

dealer.” Affidavit of Probable Cause, 11/19/2010, at 3.

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simply being used to bolster their credibility.” Brief for Bidwell at 31. This

claim is without merit.

The admission of evidence is committed to the sound discretion

of the trial court, and a trial court’s ruling regarding the

admission of evidence will not be disturbed on appeal unless that

ruling reflects manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support to be clearly

erroneous.

Pugh, 101 A.3d at 822 (quoting Commonwealth v. Minich, 4 A.3d 1063,

1068 (Pa. Super. 2010)).

Here, Corporal Bray testified as an expert in drug trafficking, and

opined that the facts surrounding Bidwell’s possession of methamphetamine

were consistent with possession with intent to deliver. N.T., 5/7/2013, at

110, 164-65. Corporal Bray testified that the quantity of methamphetamine

found in Bidwell’s truck typically “would be re-packaged into a bunch of little

bags . . . and then sold in smaller quantities.” Id. at 161. Furthermore, the

certified record belies Bidwell’s contention that Corporal Bray based his

opinion solely upon the testimony of Argot, Dehaan, and Kitchell. Corporal

Bray also considered the quantity and packaging of the methamphetamine,

and the fact that the methamphetamine was in crystalline, rather than

powder, form. The trial court did not abuse its discretion in allowing

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Corporal Bray to testify that the amount of methamphetamine discovered in

Bidwell’s tractor-trailer likely was intended for distribution.17

For the foregoing reasons, the trial court erred in admitting evidence

of Bidwell’s prior drug deliveries under the auspices of Rule 404(b). Because

the certified record is devoid of any other compelling evidence of Bidwell’s

intent to deliver methamphetamine, we cannot conclude beyond a

reasonable doubt that the error was harmless. Accordingly, we vacate

Bidwell’s judgment of sentence and remand for retrial.

Judgment of sentence vacated. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/2015

____________________________________________

17

In light of our holding that the trial court erred in admitting the

Commonwealth’s Rule 404(b) evidence, and because Corporal Bray based

his opinion, at least in part, upon that testimony, Corporal Bray’s expert

opinion necessarily may differ upon remand.

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